Clinical decisions – available options or best interests?
The Court of Appeal considers the question in the context of life-sustaining treatment but with potentially far reaching consequences for all care and treatment.
In a judgment handed down on 3rd March, Townsend v Epsom & St Helier NHS Trust [2026] EWCA Civ 195, the Court of Appeal considered whether or not a ‘clinical decision’ not to continue life sustaining medical treatment was a decision subject to best interests considerations (and thus also subject to the ‘supervision’ of the Court of Protection).
Judgment explained
In a significant decision, the Court held that best interests considerations did apply, concluding that:
- Decisions about the care and treatment of a patient who lacks capacity – including withdrawal of life sustaining treatment – must be taken in the patient’s best interests and there is no ‘carve out for “clinical decisions”’.
- Where there is agreement between the family, clinicians and second-opinion experts that is in a patient’s best interests to have treatment withdrawn, then there is no need to bring an application to Court – affirming An NHS Trust v Y. But ‘if there is disagreement, “a court application can and should be made”… [and] The NHS commissioning body responsible for the patient must apply to the Court. The hospital cannot pre-empt court proceedings by unilaterally withholding or withdrawing treatment on “clinical” grounds. A decision whether or not to withdraw treatment has to be a best interests decision’.
- ‘where the view of the treating team and the second opinion experts is that continuing treatment is clinically inappropriate, the Court will scrutinise the evidence to determine whether withdrawal or withholding treatment is in P’s best interests… In no circumstances can the Court compel the doctors to provide treatment that they consider clinically inappropriate. But the decision is for the Court, not the clinicians.’
Our commentary
This is a complex decision, which may well be appealed to the Supreme Court. On first reading, the judgment seems to remove the preliminary decision-making stage of clinical assessment of the available, i.e. clinically appropriate, options for a patient without capacity. Instead, it proceeds to a best interests analysis of all options, irrespective of clinical suitability, with a requirement to seek the Court of Protection’s determination in the event of a disagreement. This seems at odds with the well-established principle that no clinician can be compelled to give treatment that they consider clinically inappropriate.
Our preliminary view is a high level of concern that this case will be used widely to challenge clinical assessments and increase the onus on Trusts and ICBs to put cases before the Court of Protection.
Contact us
We will provide further, more detailed commentary and additional resources in due course. If you have any questions in the meantime, please do not hesitate to contact Helen Claridge and Anita Rao or fill out the form below.